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August 16, 2006

Taking stock of post-Booker circuit splits

In this recent post, where I pondered when and how the Supreme Court will take up a case addressing post-Booker reasonableness review, I mentioned that the circuits are split on a various aspects of federal sentencing after Booker. Here I want to briefly chronicle major splits and ask for reader help in identifying any I have overlooked.

1. The presumption of reasonableness: The circuits are nearly evenly split on whether a within-guideline sentence should be afforded a presumption of reasonableness on appeal. But, since nearly every within-guideline sentence gets affirmed with or without the presumption, this split seems more a matter of style than substance.

2. The persistence of Rule 32(h): The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range. Though this is significant split, I suspect most district courts give the parties some opportunity to address key 3553(a) factors before sentencing, and thus I doubt this split is very consequential in most cases.

3. The role of "traditional" departures: The Seventh Circuit has pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has recently echoed this sentiment. But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a departure analysis before considering 3553(a) factors. Though this might seem like a matter of semantics, the role of departures can ripple through many aspects of the post-Booker world (as discussed here and here); I think this is an important issue that someone needs to resolve in order to have a more uniform federal sentencing system.

4. The applicable version of the guidelines: The Seventh Circuit's recent Demaree ruling (discussed here and here) held that, after Booker, district courts may (and should?) apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime. But other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime. Though an intricate ex post facto matter, this issue could have more impact on post-Booker sentencing than any other issue listed here (especially in white-collar cases and other cases in which the guidelines have changed a lot in recent years).

There have been, of course, lots of post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues. But some of these issues have been harmonized by circuit rulings, and none have to date produce a tangible circuit split. There may be, however, other important splits I have not mentioned, and readers are encouraged to supplement my list.